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Commonwealth v. Simmons

Massachusetts Appeals Court (June 15, 2007)

In a probation violation proceeding, the defendant's statements of intent to kill his former girlfriend - - made to a 3rd party under circumstances indicating his intent that his words reach her - - constitute sufficient evidence of the crime of threats to support an order of probation revocation.

The defendant, having pled guilty to restraining order violations and assault on his former girlfriend, was sentenced to concurrent 2 ½ years HOC, with eighteen months to serve, and the balance suspended with supervised probation for 3 years. Following his release, during the midst of a court-ordered substance abuse evaluation, the defendant - - who had been notified at the start of the session of the limitations of confidentiality, and specifically told that any disclosures relative to harming himself or others would be reported to "appropriate authorities" - - told the therapist that he was going to kill his former girlfriend and her present boyfriend. He told the therapist, "You can write that down." When the therapist asked if he had a plan, the defendant responded that he was going to shoot them.

When the session concluded, the therapist reported the statements to her superiors and to the Probation Department, which moved to surrender him, on the grounds that he had committed a crime (making threats) while on probation. Following the surrender hearing, the court ordered the defendant surrendered on his probation and imposed the balance of the suspended sentence. The defendant appealed, arguing that there was insufficient evidence of the crime of threats to constitute a violation of probation.

In this probation revocation hearing, the Commonwealth was required to prove, by a preponderance of evidence, that the defendant committed a crime. The crime of threats requires proof that the defendant either communicated his threat to his target or intended that it be communicated to that person. A defendant's utterance of the threat to a third party who would likely communicate it to the target constitutes evidence of intent to communicate the threat. The Appeals Court found sufficient evidence that this defendant intended his threats to reach his girlfriend, with the police department, the probation department or other authorities acting as his intended intermediaries.